Withdrawal of suit by plaintiff with liberty to file fresh suit


Question: I had filed a civil suit seeking permanent injunction against the respondents who were interfering with my possession of a property. However, by mistake, I had given wrong details of the property which I had recently purchased since previously I was myself given wrong details of the above property, and it was only recently that I came to know about he correct details of the property. My lawyer has advised me that instead of seeking amendments in the plaint to correct the details, it would be better to withdraw the suit with liberty to file a fresh suit with correct details of the property. My question is whether it is possible for me to withdraw the existing civil suit and file a fresh suit with correct details? Will the court permit it?

Answer: It is possible to withdraw an existing suit with liberty to file a fresh suit, subject to certain conditions. The relevant legal provision in contained in sub-rule (3) of Rule 1 of Order 23 of the Civil Procedure Code, which is reproduced below:

“(3) Where the Court is satisfied,—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.”

Thus, if a suit would fail due to some “formal defect” or if the court is satisfied that there “sufficient grounds”, the court may allow the plaintiff to withdraw the suit with liberty to file a fresh suit. So, you have to satisfy the court in this regard.

It is pertinent to point out that in the case of V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63, the Supreme Court has held that:

“As per Order 23 Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order 23 Rules 1(3)(a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order 23 Rule 1(3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b), that is, existence of a “formal defect” or “sufficient grounds”. The principle under Order 23 Rule 1(3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action.”

In the above case, it was further held that “formal defect” is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. It was held that “formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.

In the above case, the appellants had filed the suit describing the suit property as Survey No. 192/9 but the respondents were said to have transferred the patta for the suit property settling as Survey No. 192/14. The Supreme Court held that the defect in the survey number of the suit property went to the very core of the subject-matter of the suit and the entire proceedings would be fruitless if the decree-holder was not able to get the decree executed successfully and thus, the said defect would constitute to be a “formal defect” within the meaning of Order 23 Rule 1(3)(a) CPC.

Though I am not aware of the full facts of your case, it appears that the facts in your case are somewhat similar to the facts of the above case decided by the Supreme Court, and it may perhaps be covered within the expression “confusion regarding identification of the suit property” as held by the Supreme Court in the above case. Keeping in view the above legal provisions and the judgment of the Supreme Court, you may take a decision in consultation with your lawyer who would be well-versed with the detailed facts of your case.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers. List of his YouTube Videos.

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